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Minh v Xue [2019] NZFC 4507

Published 01 September 2021

Alienation — estrangement — welfare and best interests of child — interim guardianship — Care of Children Act 2004, ss 4, 5, 6, 31, 32 & 133 — Family Court Rules 2002, r 132 — Oranga Tamariki Act 1989, s 19. Maternal relatives of a child applied to be appointed as additional guardians of a child whose mother had died. At the hearing the respondent father made an oral application under s 31 of the Care of Children Act (the Act) for the child to be placed under the guardianship of the Court. The child was currently in the care of maternal relatives, who had positioned him against his father, as well as his peers. A psychologist had serious concerns for the child, stating that his developmental needs were not being met. The maternal family were controlling and rejected any views other than their own. The child did not have relationships with peers outside the family and he suppressed negative feelings about his maternal family and projected anger onto his father. There were no safety concerns requiring the father's contact to be supervised. Prior to entering into the maternal relatives' full time care, the child had a warm and loving relationship with his father, as well as good relationships with his peers. Section 4 of the Act states the paramount concern is the welfare and best interests of the child. It is also a requirement that the Court take into account the principles in s 5 which include safety, parental and guardian responsibility for care, consultation and co-operation, continuity of caregiving arrangements, continuing relationships with parents and the preservation and strengthening of extended family relationships and identity. Section 6 identifies that opportunities must be given to children to express their views and any views expressed must be taken into account. In his current care arrangements, none of the requirements under s 5 were being met, except that he was physically safe. His care, development and upbringing was not primarily the responsibility of his remaining parent, and his care, development and upbringing was not being facilitated by consultation or cooperation between his parent/guardian and the people caring for him. There was no continuity in his care, development and upbringing. He was not continuing to have a relationship with his last surviving parent and his relationship with his paternal family group was not being preserved and strengthened, and neither was his identity being preserved and strengthened. The Judge found there was no option other than to place the child under the guardianship of the Court. The Chief Executive of Oranga Tamariki was appointed as agent on an interim basis. The Chief Executive was to be responsible for the day-to-day care of the child and determine the frequency, duration, terms and conditions of contact between the child and his paternal and maternal family. Both sides of the family were to be consulted. The Court was to fund 10 sessions of supervised contact between the child and his father. Judgment Date: 14 June 2019. * * * Note: names have been changed to comply with legal requirements. * * *